Article by Julia Lutsky
A prisoner is the only person whose right to medical care is guaranteed by the Constitution. The courts have ruled that when prison officials act with deliberate indifference to the serious medical needs of prisoners such indifference constitutes cruel and unusual punishment in violation of the Eighth Amendment. In Estelle v. Gamble, 1976, The Supreme Court ruled that prisoners are entitled to adequate health care defined as health care meeting community standards. In addition, the due process clauses of the Fifth and Fourteenth Amendments protect pre-trial detainees.
According to a report by the Department of Justice approximately 11.5 million people cycle in and out of prisons and jails each year; the majority of them will spend only a short time in jail. Many of those millions are infected with communicable diseases such as hepatitis B and/or C, HIV/AIDS, tuberculosis, sexually transmitted diseases (STDs) - such as syphilis, gonorrhea, chlamydia - and other highly contagious diseases like scabies. According to the Nation Magazine, (The Shame of Prison Health, by Sasha Abramsky, 7/1/02),
“experts estimate that for [such] diseases, the infection rates (the number of cases per 100,000) among prisoners are upward of ten times those found in the American population as a whole.”
The high level of disease among prisoners when they enter the correctional system presents the authorities with two clear options: intervene to treat those who are ill and to arrange for treatment to continue when the person leaves prison - or let the infections fester and spread. The overwhelming reality is that corrections systems take the second option. Even when there is initial screening for infection, nothing is done with the information obtained that would benefit either the prisoner or the general public when he or she is eventually released. When a sick person enters the system his or her illness stands a good chance of being spread by proximity to other prisoners (particularly the case with tuberculosis), by the widespread but officially ignored presence of prison rape, and by the unacknowledged presence and use of injectable drugs. Both rape and needle-sharing propagate hepatitis B and C, HIV/AIDS and, in the case of rape, the STDs.
Many European countries provide clean needles to prisoners known to be drug users. This, in itself, would help to contain the spread of blood borne diseases. One unusual study made in Tennessee prisons (unusual in that it was made at all) indicated that as many as 28 percent of its prisoners admitted to shooting drugs while imprisoned. The source which provided that information, CJ News [January 2002 issue, “Incubating Disease,” by William Speed Ward, 7/19/2001], does not specify the date the study was carried out. According to former prisoners, sharing of needles has been rampant since the 1980s. That being said, the amount of tracking done on needle sharing is appallingly low - the theory evidently being “see no evil, hear no evil, speak no evil.” Given the refusal to recognize the presence of injectable drugs in US prisons, it is not likely that a policy such as the one practiced in Europe would be considered, even in light of the public health benefit that would result.
A study made during the early 1980s in one California prison found that 14 percent of its prisoners had been coerced into oral or anal sex. Eighty-seven percent of the prison officers in Texas, later in that decade, claimed that prison rape was common in that state. A 1996 study showed one Nebraska prisoner in four had been pressured into “undesired sex.” The California advocacy group, Stop Prison Rape, estimates that nearly 364,000 prisoners nationwide - approximately 18 percent of the total - are raped each year. This kind of violence has a terrible impact both physically and psychologically on those who must suffer it. New prisoners, especially young and first time prisoners, are the preferred targets. Once initiated a prisoner has two options: to become the “favorite” of a prisoner or group of prisoners and suffer rape in exchange for protection or to arm himself and seek out others forming a sort of mutual protection group. Reporting the rape to the authorities can result in the raped prisoner himself being cited for aggression and locked in solitary or in his transfer to another prison - or both. There, of course, he faces the same problem he just left.
Testing for and treating the above mentioned diseases could significantly decrease contagion in prisons and could keep the diseases from spreading to the general public upon the release of prisoners. The Centers for Disease Control (CDC) in Atlanta points to the some 600,000 prisoners released each year as carriers of potentially dangerous diseases. In March of this year, CDC director John Miles told prison doctors and nurses that prisons were “the nation’s reservoirs of disease.”
If one considers costs, the greatest saving would take place in the diagnosis and treatment of HIV cases. According to the CDC “for such a disease as HIV, offering screening to . . . 100,000 [prisoners] will likely detect fifty new cases; counseling those who test positive will ... prevent the disease from being passed on to four more people than would be the case [otherwise]. Since the additional screening and counseling ... runs to approximately $125,000, while the cost of treating four additional cases of HIV/AIDS over the patients’ lifetime is estimated to be $800,000, [the CDC] believes such screening to be cost-effective.” [Abramsky]. However, in most states with treatment programs, when prisoners are found to have HIV/AIDS, hepatitis, an STD, tuberculosis or any other disease, they are not permitted to begin treatment if they are within 15 months of a parole board hearing (or release) in spite of the fact that most paroles are denied. Prisoners are also frequently denied hepatitis treatment if they have a history of drug addiction unless they are in a drug rehabilitation program. This is true even though they may be on the waiting list for such a program.
Federal law now permits the voluntary testing and treatment of federal prisoners with AIDS. About half the states have legislation dealing with the presence of AIDS in prison. A few states mandate tests - most simply allow them. Five states test only if the prisoner’s behavior indicates the likelihood s/he will transmit the disease to others. A few states test only if a prisoner’s behavior is thought to have caused the infection of a corrections officer. When it comes to knowing the full extent of the transmission of communicable diseases and their spread in prisons, the CDC seems wont to cast a blind eye: director Miles asserts that most infected prisoners arrive with their illnesses. Although he acknowledges that sex and drug use occur in the prison setting he asserts the rate of new infections is low. That the CDC is in fact aware of the true problem is indicated by a study it made in 1990. An FOIA request made by Illinois state representative Cal Skinner unearthed the study which showed that three of every 1,000 prisoners contracted HIV in jail every year - or more than ten times the rate in Illinois as a whole. According to a briefing paper of the National Conference of State Legislatures (“HIV testing in Inmates,” by Ann Dutch, V9, No. 35) the rate of HIV infection in prisons across the country is five times that of the general population A 1996 Bureau of Justice study indicated 24,000 prisoners were HIV positive. More recently, a study by the non-profit National Commission on Correctional Health Care indicated some 47,000 prisoners were so infected. The NCCHC estimates this to be ten times the rate in the general population.
Alabama, Mississippi and South Carolina allow HIV positive prisoners to be segregated from the uninfected. Some states have laws that mandate the segregation of HIV positive patients when their conduct appears likely to spread the disease: Michigan, Nevada, Utah and Texas have such laws. Rhode Island has gone so far as to legislate the segregation, discrimination and denial of privileges to HIV positive prisoners. Such policies of segregation may be logical and justified in terms of general public health but they violate confidentiality and hence violate a prisoner’s civil rights.
The vaccine for hepatitis B, which causes cirrhosis and/or cancer of the liver, was developed 20 years ago. It has cut the infection rate for that disease from 200,000 a year to 80,000. Immunizing all incoming prisoners against hepatitis B would help stop its spread in prison and eventually in the general population. The CDC has stated that the greatest challenge to ending the spread of hepatitis B is the vaccination of adults at high risk for infection.
Hepatitis C, for which there currently is no vaccine, causes cirrhosis and/or cancer of the liver in about 20 percent of those it infects and it kills 5 percent. It is an insidious disease in that it can remain hidden for ten or more years. Only screening can prevent its spread. Since as many as 33 percent of California prisoners and 28 percent of Texas prisoners suffer from hepatitis C, while approximately two percent of the general population does (more than five million people, of whom eight to ten thousand die each year), it would seem highly logical to screen prisoners for this disease. Estimates for the percent of prisoners infected nationwide vary between 18 and 30 percent depending on the source; if the six million in jails, on probation or otherwise under the supervision of the criminal justice system are considered, the upper figure rises to 40 percent. In the majority of prisons, however, no screening is done and no state requires prisoners to have a blood test for hepatitis C.
At the same time, many prisoners seemingly do not want to know whether they are infected: in the state of Oregon, for example, between December 1999, and November of the following year, 9,600 prisoners were informed about the dangers of hepatitis C yet only 10 percent - 937 - asked to be tested. Of these last, a third proved to be infected; of the infected prisoners, 218 sought treatment. Biopsies were needed for only four and only one was ultimately put on a regimen for the prescribed medication. The Oregonian (11/30/2000, “Inmate Hepatitis C tests sought,” Michael Wilson) reports then corrections medical director Dr. Steve Shelton as saying, “there should be more people out there requesting testing and getting tested.” When asked whether the department was limited by financial resources, Shelton replied, “not at this time.”
Given the cost cutting measures that have been taking place across the country his statement is very much open to question. It is as if Dr. Shelton wished to blame prisoners themselves for the lack of treatment their illnesses receive.
One reason that states do not screen for hepatitis C is the cost of treatment: with the new drugs available such treatment can cost between $10,000 and $25,000 per year. And treatment is effective in only fifteen to 45 percent of cases. In the year 2000, New York State spent $71 million to treat approximately 1,400 prisoners with the AIDS virus. Eight of them died. The state spends about $6 million annually to treat 95 prisoners diagnosed with hepatitis C. In 2000 nine such prisoners died.
Edward McKinna, a 55-year old New York state prisoner dying of hepatitis C is suing the state because, he says, he is being denied treatment that could save his life. He believes he contracted the virus when he was shooting drugs while serving in the army in Thailand in the early 60s. He says they give him only two years to live and will not treat him because he will be eligible for parole within a year. This is in accordance with the National Institute of Health guidelines which stipulate that only those who can receive a full year of treatment are eligible to receive it. That the prisoner will, in all likelihood, not be pardoned doesn’t matter.
The rate of hepatitis C infection in California prisons is four times that of HIV/AIDS; while 14,305 of the approximately 160,000 prisoners in that state were positively identified as having the hepatitis C virus in 2001 only 796 were receiving treatment. A 1999 study by the California State Department of Health Services indicated that upwards of 50,000 prisoners in that state might be infected hence it can be concluded that treatment for this disease is, for all intents and purposes, nonexistent.
Tuberculosis, an airborne disease which infects perhaps one in 10,000 in the general population, infects one in four in some prisons. When TB infected prisoners are released without proper follow-up care they can easily spread the disease to those with whom they live and work. Tuberculosis has become, in some areas, antibiotic resistant; this occurs when infected people do not follow the prescribed medication regimen. Russian prisons, overcrowded as they are, have been the breeding ground for drug-resistant tuberculosis - 30,000 infected prisoners are released each year. The result has been a threefold increase in tuberculosis among the Russian people. The same thing threatens this country, given the level of infection.
According to CJ News, (January 2002) there was an outbreak of drug resistant TB in the New York state prison system early in the 90s; thirty-nine prisoners were infected as were two corrections officers. Thirty-five of the prisoners and one of the corrections officers died. The other corrections officer transmitted the infection to his son but both survived. More than 1,000 people in the communities to which the infected prisoners and corrections officers returned became infected as a result of the outbreak. Whether any of the thirty five prisoners who died had been freed before their death was not stated by CJ News.
Three years ago in South Carolina a prisoner in the section reserved for HIV patients was also infected with TB; his disease spread rapidly to those around him, especially those with lowered immune resistance and 32 others caught the disease: 31 prisoners and a medical student died. Tuberculosis may have received more attention than hepatitis B and C and the STDs for two reasons: it is easily spread and it does not face the puritanical refusal to recognize its presence as does sexually transmitted disease or the diseases passed via the sharing of infected needles by drug users. AIDS, though transmitted sexually or through the use of shared needles, is receiving an increasing amount of attention because it has become a worldwide pandemic. Its spread in prison can only exacerbate the pandemic.
When prisoners return to their communities, they are, for the most part, left to navigate the system on their own. They may find medical benefits with the help of non-profit organizations, but most often they must find it with nothing more than their own ingenuity and resourcefulness. Many public health benefits are available only after a waiting period that may be as long as 45 days. This can be catastrophic for an individual who needs continued care. Though public assistance is often expedited for those released prisoners suffering from AIDS, according to Deborah Santana, with the Osborne Society in the Bronx, New York, those with other diseases like tuberculosis, hepatitis or STDs must wait, sometimes months, for the help they need. In the interim their diseases fester and are passed to those around them.
A striking example of how the transition between prison and the community can be made relatively easy is that of the Hamden County Jail in western Massachusetts. The jail maintains a center with a staff of 70, half of whom are full time, the other half part time. In-house doctors are not employed at the jail; instead, prisoners, who come from the streets of towns in Hamden County, are assigned according to one of the four zip codes from which they come. The jail system contracts with public health clinics in the four zip codes and each of them in turn sends a doctor to the health center for several hours a week. Prisoners are given thorough physical exams, blood tests, urine analyses, chest X-rays and whatever other tests their particular state of health may require. They are assigned primary care doctors by their zip codes - and they continue their care with these same doctors when they leave the jail. This has the double benefit of continuing their care and protecting others from contagion. Another benefit of such a comprehensive approach to providing health care is its cost effectiveness: it costs about as much per prisoner, according to Doctor Thomas Conklin who heads up the Hamden County jail health center, as do other correctional facilities in Massachusetts which are run in the traditional manner.
Other states are experimenting with similar plans but all these programs are threatened by the current budget crisis in most states. When cuts come, as Jack Beck, a New York legal aid attorney, put it, “... there’ll be a rise in demand for public health services. There’s a likelihood that [prisoner] and ex-offender populations and poor communities are going to be suffering for some time to come.”